Lessig and Corruption

by on April 14, 2008 · 12 comments

Adam last month noted the NRO interview with Larry Lessig in which he promised to blow up the FCC. I share Adam’s puzzlement about what Lessig means by this. Most of us would cheer the idea of FCC-demolition, but there are a lot of regulations that are sufficiently complex that they couldn’t be administered without a regulatory bureaucracy.

Part of it, I think, is that Lessig is merely playing to his audience. As a former right-winger himself, Lessig clearly understands what it takes to catch the interest of conservative- and libertarian-minded readers, and he’s not above spinning his arguments to maximize their appeal to the people he’s addressing. Indeed, on issues where I agree with him, such as Free Culture, I’ve appreciated his ability to frame his policy arguments in either libertarian or liberal terms.

But this makes his anti-corruption turn all the more bewildering. Surely a former libertarian ideologue and clerk for Justice Scalia has read enough of public choice economics to see the challenges his “Change Congress” movement will encounter. When he’s not talking to NRO, Lessig seems to think there’s some kind of pristine “democratic” process that we could get back to if only we could get the money out of politics. But that’s not the way the world works. As Lessig puts it:

So I don’t want a world where there are no lobbyists — I think lobbyists are essential. I think the message of lobbyists and the training of lobbyists is essential. Just like I think that what lawyers do before the Supreme Court is essential. But just as I think everybody would think it weird if a lawyer before the Supreme Court would send $100,000 to the Justice Roberts Retirement Fund or $100,000 to the Renovate Justice Roberts’s Office Fund, I think we better recognize there’s something perverse about a member of Congress having one of the people who is trying to persuade him what the right answer is raise $100,000 for his campaign. That’s the link we’ve got to break.

The problem with this is that there’s nothing special about the $100k campaign donation. It could just have easily have been a $100k contribution to an independent group aligned with the candidate. Or $100k spent on get-out-the-vote efforts in the candidate’s home state. Or promising to give one of the candidate’s staffers or relative a cushy six-figure job as a thank you. Or distributing a politically helpful message to the company’s employees or customers.

Of course, we can try to make all of those things illegal too, but this is a superficial way of looking at the situation. The problem isn’t that there’s a discrete list of corrupt practices that we can identify and prohibit. The problem is that if politicians are willing to be corrupted, and special interests are willing to spend resources to corrupt them, they’ll find ways to get it done. You can certainly reduce the effect on the margin—by banning overt bribery, for example—but once you’ve banned the really obvious categories of back-scratching, it becomes more and more difficult to make any further progress. What’s going on in Washington is disgusting, to be sure, but it’s not new or unique to the United States. And I think fixing it is going to be a lot more challenging than Lessig imagines.

  • Adam Thierer

    Tim… Agreed on all counts, and what’s worse is that Lessig is proposing full-blown taxpayer financing of political campaigns on the theory that “Publicly- financed campaigns will stop the cycle of campaign finance reform loopholes and ensure that big money stays out of Congress forever.” Not only will it not do so for the reasons you point out, but it will then burden us with a massively unjust electoral system that forces people to support people and causes they find offensive and idiotic.

    See prong #4 of the “Change Congress” plan here:
    http://change-congress.org/about

  • http://www.techliberation.com Adam Thierer

    Tim… Agreed on all counts, and what’s worse is that Lessig is proposing full-blown taxpayer financing of political campaigns on the theory that “Publicly- financed campaigns will stop the cycle of campaign finance reform loopholes and ensure that big money stays out of Congress forever.” Not only will it not do so for the reasons you point out, but it will then burden us with a massively unjust electoral system that forces people to support people and causes they find offensive and idiotic.

    See prong #4 of the “Change Congress” plan here:
    http://change-congress.org/about

  • http://sarahdavies.cc Sarah Davies

    The problem is that if politicians are willing to be corrupted, and special interests are willing to spend resources to corrupt them, they’ll find ways to get it done.

    From what I’ve heard from Lessig about his change congress movement, he believes that politicians do not want to be corrupted, but are good people who find themselves in a system where corruption is necessary to keep the job. I agree that willful corruption will always find loopholes. The point of the movement, as I see it, is to create more distance between decision making and campaign financing. If politicians can opt into creating that distance, they have a concrete way to show that they are good people in a bad system.

  • Tim Lee

    Sarah, that’s a fair point. However, I think the same pressures now created by the campaign finance system would re-emerge in other areas. We can see, for example, how quickly McCain-Feingold was circumvented by 527s and other efforts at influencing elections without using direct contributions or soft money. We’ve also seen the rising importance of sophisticated get-out-the-vote efforts. It seems to me that these alternative mechanisms for affecting the outcomes of elections could lead to precisely the same kinds of pressures for corruption now created by campaign contributions.

    Since you work for the ACLU, it’s worth noting in particular that the ACLU sided with the plaintiffs in challenging the constitutionality of McCain-Feingold. They argued, correctly in my view, that restricting third parties like the ACLU from spending money on political advocacy was a violation of the First Amendment. This is important because a system of public financing will only have the desired effects if it’s coupled with a system of legal restrictions on third party expenditures on political advocacy.

    Which isn’t to say that Lessig’s project is a bad one. Certainly, a politician’s promise to abstain from earmarks and PAC money and support greater transparency would make me marginally more likely to support that candidate. But these are incremental reforms, and I suspect they won’t have anywhere near the impact Lessig seems to imagine.

  • http://sarahdavies.cc Sarah Davies

    The problem is that if politicians are willing to be corrupted, and special interests are willing to spend resources to corrupt them, they’ll find ways to get it done.

    From what I’ve heard from Lessig about his change congress movement, he believes that politicians do not want to be corrupted, but are good people who find themselves in a system where corruption is necessary to keep the job. I agree that willful corruption will always find loopholes. The point of the movement, as I see it, is to create more distance between decision making and campaign financing. If politicians can opt into creating that distance, they have a concrete way to show that they are good people in a bad system.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Sarah, that’s a fair point. However, I think the same pressures now created by the campaign finance system would re-emerge in other areas. We can see, for example, how quickly McCain-Feingold was circumvented by 527s and other efforts at influencing elections without using direct contributions or soft money. We’ve also seen the rising importance of sophisticated get-out-the-vote efforts. It seems to me that these alternative mechanisms for affecting the outcomes of elections could lead to precisely the same kinds of pressures for corruption now created by campaign contributions.

    Since you work for the ACLU, it’s worth noting in particular that the ACLU sided with the plaintiffs in challenging the constitutionality of McCain-Feingold. They argued, correctly in my view, that restricting third parties like the ACLU from spending money on political advocacy was a violation of the First Amendment. This is important because a system of public financing will only have the desired effects if it’s coupled with a system of legal restrictions on third party expenditures on political advocacy.

    Which isn’t to say that Lessig’s project is a bad one. Certainly, a politician’s promise to abstain from earmarks and PAC money and support greater transparency would make me marginally more likely to support that candidate. But these are incremental reforms, and I suspect they won’t have anywhere near the impact Lessig seems to imagine.

  • Carme

    Like Sarah said, it appears that Lessig is trying to widen the “mental step” of becoming corrupt. If he is right and most politicians are good people, this is a clever idea.

    The political system is very complex and there will always be ways for money to influence politicians, but that only strengthens Lessig’s conclusion. Since the problem can’t be solved completely, you might as well try a step-by-step approach trying to reach some “acceptable equilibrium”.

    While corruption exists everywhere, there are different levels in different places and it depends a lot on the moral norms concerning what passes as corruption in each place. These norms, in turn, are greatly affected by the level of corruption currently in place. So reducing corruption even by a small amount, as Lessig proposes, might actually change the norms and induce further reductions.

    In such a complex system it’s wiser to think up small changes, implement them, gauge their success and use that to plan ahead. Designing some over-arching solution is bound to fail, both because it’s too hard to implement and because it’s impossible to actually predict what its effects will be.

  • Carme

    Like Sarah said, it appears that Lessig is trying to widen the “mental step” of becoming corrupt. If he is right and most politicians are good people, this is a clever idea.

    The political system is very complex and there will always be ways for money to influence politicians, but that only strengthens Lessig’s conclusion. Since the problem can’t be solved completely, you might as well try a step-by-step approach trying to reach some “acceptable equilibrium”.

    While corruption exists everywhere, there are different levels in different places and it depends a lot on the moral norms concerning what passes as corruption in each place. These norms, in turn, are greatly affected by the level of corruption currently in place. So reducing corruption even by a small amount, as Lessig proposes, might actually change the norms and induce further reductions.

    In such a complex system it’s wiser to think up small changes, implement them, gauge their success and use that to plan ahead. Designing some over-arching solution is bound to fail, both because it’s too hard to implement and because it’s impossible to actually predict what its effects will be.

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